Temminck v. Doering , 97 Or. 145 ( 1920 )

McBRIDE, C. J.

1. It is practically conceded that all the defendants, including those brought in by order of the court, were proper and necessary parties to the suit; indeed, Waite, Robertson and the Portnomah Land Company were brought in at the instance of defendant Doering for that reason. This being so, it was incumbent on him to properly serve each defendant with a copy of his notice of appeal, and in default of such service upon any one of the defendants the appeal must fail: In re Waters of Chewaucan River, 89 Or. 659 (171 Pac. 402, 175 Pac. 421); Thomas v. Thruston, 87 Or. 650 (171 Pac. 404); D’Arcy v. Sanford, 81 Or. 323 (159 Pac. 567).

2. Service upon a nonresident attorney, outside of the state, was a nullity, where the defendant, upon which such attempted service was made, was an Oregon corporation. Subdivision 1 of Section 550, L. O. L., as amended by Chapter 319, General Laws of 1913, among other things, provides:

“If the appeal is not taken at the time the decision, order, judgment or decree is rendered or given, then the party desiring to appeal may canse a notice, signed by himself or attorney, to he served on such adverse party or parties as have appeared in the action or suit, or upon his or their attorney, at any place in the state, and file the original with proof of service indorsed thereon, with the clerk of the court in which the judgment, decree or order is entered.”

The defendant, Portnomah Land Company, was a resident within the state, and had an office therein, and was therefore, capable of being served within the state. The fact that its resident attorney, Mr. Moody, had removed from the state subsequent to the trial, made it incumbent upon defendant Doering to serve the notice upon such company.

Much as we dislike to dismiss a cause without a hearing on the merits we cannot find any authority for a service upon a nonresident attorney, where the appellee is a resident of the state; and the appeal of this defendant is therefore dismissed.

Appeal Dismissed.